Opinion
750 Index No. 801170/22 Case No. 2022–03204
10-10-2023
In the Matter Jorge BENAVIDES, Petitioner–Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent–Appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Amanda Abata of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Amanda Abata of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Gonza´lez, Kennedy, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 29, 2022, which granted petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.
The court did not abuse its discretion when it granted petitioner leave to serve a late notice of claim on respondent, because petitioner adequately established the relevant factors.
The purpose of subdivision 5 of section 50–e of the General Municipal Law, as amended, is to allow the judiciary to be flexible, to consider all relevant factors, and to exercise considerable judicial discretion in determining whether to permit service of a late notice of claim (see Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 410 N.Y.S.2d 898 [2d Dept. 1978] ; see also Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453 [1978] ).
In this case, petitioner's physical incapacity weighs heavily in favor of granting leave to file a late notice of claim. On September 6, 2020, petitioner was admitted for severe injuries, which were exacerbated by his allegedly suffering an ischemic stroke. Petitioner suffered traumatic brain injury, the loss of use in his right arm, hand, and leg, and spent the next 15 months recovering from his injuries while receiving inpatient treatment and treatment at two rehabilitative facilities. Following his discharge, he was confined to a wheelchair in his parents’ apartment. These injuries provide a reasonable excuse for his late filing (see Strauss v. New York City Tr. Auth., 195 A.D.2d 322, 322, 600 N.Y.S.2d 32 [2d Dept. 1993] ["the lateness of the notice was due to petitioner's disabling injuries, which prevented her from taking any but the most rudimentary steps to protect her claim, and prevented her from conducting an investigation adequate to identify the proper municipal corporation against which the claim should be asserted"]; see also Matter of Charles v. New York City Health & Hosps. Corp., 166 A.D.2d 526, 527, 560 N.Y.S.2d 703 [2d Dept. 1990] ["As has often been held, the prolonged hospitalization of a claimant, and the filing of a notice of claim within a reasonable time after the incapacity has terminated, constitute circumstances justifying the granting of an application for leave to serve a late notice of claim"]).
In addition, respondent New York City Hospitals Corporation (HHC) failed to make an adequate showing that it would be substantially prejudiced if petitioner is granted leave to file his claim. Although that notation does not appear to be a definitive diagnosis of an injury sustained by petitioner, it sufficiently put respondent on notice of a possible injury, necessitating further inquiry ( id. at 528, 560 N.Y.S.2d 703 ["While the HHC complains that its possession of the hospital records did not give it notice of the precise nature of the malpractice claimed in time to perform a prompt and thorough investigation, neither General Municipal Law § 50–e(5) nor case law requires a claimant to establish the merits of his cause of action at so preliminary a stage as upon service of a notice of claim"]).
Therefore, Supreme Court did not abuse its discretion in granting petitioner's leave to file a late notice of claim, given petitioner's near complete physical incapacity and HHC's failure to adequately rebut petitioner's showing that granting him leave to file would not cause substantial prejudice.
We have considered respondent's remaining arguments and find them unavailing.